Bowman

Respondent, in connection with his lumber business, owned and conducted a railroad running from his mill to the timber, about eight miles distant. Upon Monday morning, December 9th, at 6 o’clock, and while it was yet dark, Victor Bowman, an ordinary laborer, in connection with the engineer, fireman, foreman, and other laborers, started upon a working or construction train over the road. They had proceeded but a few hundred yards when the train ran into a washout some forty feet in length and fourteen feet in depth. Bowman and the engineer were killed, and others of the party injured. This action was brought by representatives of Bowman for damages suffered by reason of his death; and upon the evidence offered by plaintiff a nonsuit was granted. This appeal is prosecuted from the judgment and from the order denying a motion for a new trial.

The facts of the case, as disclosed by the evidence, are quite meager, and, in addition to those already stated, it further appeared that heavy storms of rain had been prevalent for some time; that during the previous week these men with this train had been engaged in repairing the roadbed wherever damaged by the elements; that Saturday evening…